Lindara Mudiyanselage (Migration) - [2024] AATA 2785

Lindara Mudiyanselage (Migration) [2024] AATA 2785 (25 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Upali Premathilake Lindara Mudiyanselage
VISA APPLICANT:  Miss Anjali Umeshika Lindara Mudiyanselage
REPRESENTATIVE:  Mrs Dishni Yasamana (MARN: 1575517)
CASE NUMBER:  1930221
HOME AFFAIRS REFERENCE(S):          OSF2018/008404
MEMBER:James Lambie
DATE:25 July 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.

Statement made on 25 July 2024 at 12:21pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – false or misleading information – full-time course of study – education transcripts – verification by recognition bodies – compassionate or compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cls 101.213, 101.223; Schedule 4, Public Interest Criteria 4020; r 1.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 August 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 27 June 2018. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 101.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not meet the criteria of Public Interest Criteria 4020 in that she had provided false or misleading information in respect of her full-time study program.
The review applicant (Mr Upali) appeared before the Tribunal on 31 May 2024 and 5 July 2024 to give evidence and present arguments.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 101.223 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lindara Mudiyanselage (Migration)

Details

AGLC: Lindara Mudiyanselage (Migration) [2024] AATA 2785
Case: [2024] AATA 2785
Decision Date: 25 July 2024

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101. The applicant, Lindara Mudiyanselage, sought review of a decision not to grant the visa. The primary issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, which is a mandatory requirement for the grant of this visa.

The Tribunal was required to determine whether the applicant had provided a bogus document or false or misleading information in relation to the visa application, as prohibited by PIC 4020(1). Additionally, the Tribunal considered whether the applicant had a history of visa refusals due to a failure to satisfy PIC 4020(1) or identity requirements under PIC 4020(2A) and (2B). The Tribunal also had to consider whether any compelling or compassionate circumstances existed that would justify a waiver of the requirements under PIC 4020(4), noting that such waivers do not apply to identity criteria.

The Tribunal reasoned that the applicant did not satisfy PIC 4020. This conclusion was based on the evidence presented, which indicated that the applicant had provided false or misleading information. The Tribunal noted that the definition of a "bogus document" under section 5(1) of the Migration Act 1958 includes documents obtained due to a false or misleading statement, irrespective of whether that statement was relevant to a visa criterion. Furthermore, the Tribunal found that the applicant also failed to meet the criteria under subclause 101.213(1)(c).

Consequently, the Tribunal affirmed the decision not to grant the applicant the Child (Migrant) (Class AH) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 101.223 for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA). The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

Decision

Reasons for decision

On the basis of the above, the visa applicant does not satisfy PIC 4020 for the purposes of cl 101.223. For the reasons discussed above, Ms Lindara also cannot meet the criteria of subclause 101.213(1)(c). DECISION The Tribunal affirms the decision not to grant the applicant a Child (Migrant) (Class AH) visa.James LambieSenior MemberATTACHMENT – EXTRACT FROM MIGRATION REGULATIONS 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.…ATTACHMENT – Extract from Migration Act 1958s 5 Interpretation(1) In this Act, unless contrary intention appears:…bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a)purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false or misleading statement, whether or not made knowingly.…

Ratio Decidendi

Legal Principle Established

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